Kareem Millhouse v. Jessica Sage, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, GREENAWAY, JR. and SLOVITER, Circuit Judges. Total Pages: 6.--[Edited 02/11/2016 by JK]

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3845
___________
KAREEM HASSAN MILLHOUSE,
Appellant,
v.
JESSICA SAGE; HOLTZAPLE; WARDEN LEWISBURG USP; MINK;
O’SHANNESSY; FEDERAL BUREAU OF PRISONS; UNITED STATES
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Civ. Action No. 14-cv-01055)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 6, 2016
Before: AMBRO, GREENAWAY, JR., and SLOVITER, Circuit Judges
(Opinion filed: February 11, 2016)
___________
OPINION*
___________
PER CURIAM
Kareem Hassan Millhouse, a federal prisoner proceeding pro se, appeals an order
of the United States District Court for the Middle District of Pennsylvania denying his

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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motion to proceed in forma pauperis (“IFP”). For the reasons that follow, we vacate the
judgment of the District Court and remand for further proceedings.
In 2014, Millhouse filed a civil rights action in District Court against the Federal
Bureau of Prisons and prison employees claiming the denial of mental health treatment.
Millhouse sought to proceed IFP. The District Court denied the IFP motion on the
grounds that Millhouse has “three strikes” under the Prison Litigation Reform Act and he
had not shown that he was under imminent danger of serious physical injury as required
by 28 U.S.C. § 1915(g). The District Court dismissed the complaint without prejudice to
refiling if Millhouse paid the court filing fee and denied Millhouse’s subsequent motion
for reconsideration. Millhouse did not pay the fee and filed the present appeal.1
We have jurisdiction pursuant to 28 U.S.C. § 1291. Deutsch v. United States, 67
F.3d 1080, 1083 (3d Cir. 1995). Our standard of review is plenary. Gibbs v. Roman, 116
F.3d 83, 85 (3d Cir. 1997), overruled on other grounds by Abdul-Akbar v. McKelvie, 239
F.3d 307, 312 (3d Cir. 2001) (en banc).
The “three strikes” rule prohibits a prisoner from proceeding IFP in a civil action
or on appeal if, on three or more prior occasions, he has brought an action or appeal while
incarcerated or detained that was dismissed as frivolous, malicious, or for failure to state
a claim upon which relief may be granted unless the prisoner is under imminent danger of
serious physical injury. 28 U.S.C. § 1915(g). Millhouse argues on appeal that he

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We allowed Millhouse to proceed IFP on appeal because, contrary to the District Court’s
decision, it did not appear that he has three strikes for purposes of § 1915(g).
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satisfies the imminent danger exception, but he must have three strikes before that
question is presented.
We have held that “a strike under § 1915(g) will accrue only if the entire action or
appeal is (1) dismissed explicitly because it is ‘frivolous,’ ‘malicious,’ or ‘fails to state a
claim’ or (2) dismissed pursuant to a statutory provision or rule that is limited solely to
dismissals for such reasons, including (but not necessarily limited to) 28 U.S.C.
§§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal
Rules of Civil Procedure.” Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013). We
reasoned in Byrd that the Prison Litigation Reform Act’s purpose is best served by an
approach that does not open the door to more litigation surrounding § 1915(g). Id. We
declined to adopt an approach allowing courts to consider the nature of a dismissal and
determine whether the dismissal fits within the language of § 1915(g). Id.
Appellees argue in their brief that the District Court did not err in denying
Millhouse’s motion to proceed IFP because Millhouse has three strikes and is not in
imminent danger of serious physical harm. Appellees contend, and the District Court
found below, that the dismissal of Millhouse’s complaint in Milhouse v. Bledsoe, M.D.
Pa. Civ. No. 10-cv-00053, counts as a strike.2 We agree. The District Court’s decision in
that case reflects that the District Court granted the defendants’ motion to dismiss the

2

Millhouse has spelled his last name “Milhouse” in court filings. Prison records reflect
the spelling “Millhouse.”
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complaint pursuant to Rule 12(b)(6) for failure to state a claim. The dismissal satisfies
both categories of the rule in Byrd.
We disagree, however, with Appellees and the District Court that our dismissal of
Millhouse’s appeal in Millhouse v. Levi, C.A. No. 07-4048, counts as a strike. Our
opinion reflects that we dismissed this appeal pursuant to 28 U.S.C.
§ 1915(e)(2)(B) because it lacked “legal merit.” We held in Byrd that the dismissal of an
appeal under § 1915(e)(2)(B) because it was “without merit” does not count as a strike
because it does not satisfy either category of our rule. Byrd, 715 F.3d at 126–27.
Similarly, the dismissal at issue here does not count as a strike because the terms
“frivolous,” “malicious,” or “fails to state a claim” were not used to dismiss the appeal in
its entirety, and § 1915(e)(2)(B) is not limited to dismissals on these bases. See id. As
noted above, we may not consider the nature of the dismissal and whether it fits
§ 1915(g).
Appellees also contend that a District Court dismissal of Millhouse’s complaint in
Milhouse v. Arbasak, E.D. Pa. Civ. No. 07-cv-01442, counts as a strike. We disagree.
The defendants in that case moved to dismiss the complaint pursuant to Rules 12(b)(1)
and 12(b)(6) and, in the alternative, for summary judgment. The District Court granted
the defendants’ motion. The District Court ruled that Millhouse had not exhausted his
administrative remedies for some of his claims and dismissed these claims without
prejudice. The District Court dismissed Millhouse’s exhausted claims with prejudice,

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stating that his claims failed as a matter of law and/or that his allegations failed to state a
claim for relief.
A “dismissal based on a prisoner’s failure to exhaust administrative remedies does
not constitute a PLRA strike, unless a court explicitly and correctly concludes that the
complaint reveals the exhaustion defense on its face and the court then dismisses the
unexhausted complaint for failure to state a claim.” Ball v. Famiglio, 726 F.3d 448, 460
(3d Cir. 2013), abrogated in part by Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015).
In the case relied upon by Appellees, the District Court did not explicitly conclude that
the complaint revealed the exhaustion defense on its face. The Court looked at the
evidence submitted by both parties and ruled that the record contradicted Millhouse’s
allegation that he was precluded from pursuing his remedies. It also did not explicitly
dismiss the unexhausted part of the complaint for failure to state a claim. The Court
granted the defendants’ motion—which was brought pursuant to Rules 12(b)(1) and
12(b)(6) and sought, in the alternative, summary judgment—without saying which of
these grounds formed the basis for its decision. As a result, we conclude that this case
does not satisfy the rule in Ball for counting as a strike a dismissal for failure to exhaust.
It is thus unnecessary to consider Appellees’ additional argument that a dismissal without
prejudice (as opposed to with prejudice) for failure to exhaust counts as a strike, although

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we note that Appellees’ position appears to be in conflict with Ball. See Ball, 726 F.3d at
460 n.17.3
The District Court relied on decisions in other actions and appeals brought by
Millhouse in finding that he has three strikes, but these cases do not qualify as strikes.
See Millhouse v. Arbasak, C.A. Nos. 09-2709 and 09-2858 (summarily affirming
decision below); Milhouse v. Levi, E.D. Pa. Civ. No. 09-cv-05363 (granting summary
judgment on unexhausted claims and dismissing exhausted claim for failure to
state a claim); Milhouse v. Jordan, M.D. Pa. Civ. No. 09-cv-1365 (granting motion for
summary judgment). Appellees do not argue otherwise.
Because Millhouse does not have three strikes for purposes of § 1915(g), he was
not required to show that he was under imminent danger of serious physical injury in
order to proceed IFP in District Court. Accordingly, we vacate the judgment of the
District Court and remand for further proceedings.

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The dismissal of the exhausted claims does not bear on our analysis. In order for a
strike to accrue, a case must be dismissed in its entirety for one of the enumerated
grounds. See Byrd, 715 F.3d at 126. The failure of the unexhausted claims to fall within
one of those grounds is therefore dispositive. Additionally, we disagree with any
contention by Appellees that our decision in Millhouse v. Arbasak, C.A. Nos. 09-2709
and 09-2858, summarily affirming the District Court’s order, supports the conclusion that
the District Court’s dismissal counts as a strike because we characterized the order as a
Rule 12(b)(6) dismissal. The question whether the dismissal counted as a strike was not
before us.
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